IMPORTANT POINT
Suit for possession and mesne profit – No new plea can be taken by defendants in appeal before Supreme Court.

JUDGMENT

J.K. Maheshwari, J.

Leave granted.

2. The instant appeal arises out of the judgment dated 18.05.2018, passed by the High Court of Punjab & Haryana, Bench at Chandigarh, in Regular Second Appeal No. 6408/2016 (O&M) (hereinafter referred to as 'RSA'), whereby the said RSA was dismissed and the order of the First Appellate Court in Civil Appeal RBT No. 37 of 29.11.2012/28.01.2015 dated 31.08.2016 and judgment of Trial Court, Ferozepur dated 03.11.2012 were confirmed. In consequence, the suit for possession and mesne profit filed by the Plaintiff, who are Respondents 1 to 4 herein, with respect to a multi-storey house bearing Municipal No. BS-35-14 built on the land 4.01 marlas situated in Mohalla Shahganj, near Turi Bazar (hereinafter referred to as 'subject property') was decreed. The Appellants and the Respondents herein are addressed as per their original position before the Trial Court.

3. The Plaintiffs filed Suit No. 253 of 30.07.2011/08.05.2007 before the Trial Court claiming possession and compensation from Defendants No. 2 & 3 for occupying and using the subject property from the date of institution of suit till delivery of possession at the rate of Rs.5,000/- per month on account of their forcible dispossession by Defendant No.1. It was contended that the subject property was originally owned by Lt. Pt. Lahori Ram, grandfather of Plaintiffs and the said Lahori Ram executed a Will dated 15.11.1957 with respect to the subject property in favor of their father, namely Krishna Kumar. After the death of the Pt. Lahori Ram on 21.10.1977, the father of the Plaintiffs became exclusive owner and were in possession of the subject property. Father of Plaintiffs had also executed a Will dated 20.10.1993 in favor of alleged second wife Sushila Kumari who was mother of the Plaintiffs and the same was registered on 29.10.1993. Krishan Kumar died on 22.05.1997 thereafter, Sushila Kumari became the owner of the subject property. On death of Sushila Kumari on 29.07.2000, the Plaintiffs became owner and in possession of the subject property. It was also averred that Defendant No.1, namely Nand Kishore, claimed himself to be the son of Krishan Kumar from his first wife Bimla Rani, who removed all articles of the Plaintiff lying in the house and declared himself to be the owner of the house. Nand Kishore sold the house vide sale deed dated 04.05.2006 to Appellants, who were before the Trial Court as Defendant No.2 & Defendant No.3.

4. The Defendants No.1, 2 and 3 filed a common Written Statement wherein it was contended that Krishna Kumar was earlier married to Bimla Rani and out of this wedlock Defendant No.1 namely Nand Kishore and Hem Rani were born. On death of Bimla Rani, her sister Sushila Kumari started residing with Krishan Kumar to look after Nand Kishore and Hem Rani. Defendants also claimed that their grandfather Pt. Lahori Ram had executed a Will dated 09.12.1975 in favor of Defendant No. 1-Nand Kishore who became owner after his death, therefore, Krishan Kumar had no right in the subject property, hence he cannot execute Will in favor of his second wife Sushila Kumari. It was further contended that Defendants No. 2 and 3 are bonafide purchasers who purchased the subject property after due diligence and have availed a loan to satisfy their obligations under sale deed, therefore, they are owner of the subject property and in possession of the house.

5. On the consideration of the pleadings and evidence, the Trial Court concluded that Defendant No.1-Nand Kishore and Plaintiffs were proved to be the son and daughters of Lt. Krishna Kumar. As regards, Will dated 15.11.1957, as contended by Plaintiffs, alleged to have been executed by Pt. Lahori Ram in favor of Krishna Kumar, was not proved through attesting witnesses or by proving that the said witnesses have already expired. Further, Will dated 09.12.1975 allegedly executed by Pt. Lahori Ram bequeathing subject property to the Defendant No.1-Nand Kishore was also not duly pro